Common use of FATCA Mitigation Clause in Contracts

FATCA Mitigation. 12.11.1 If a Lender gives a confirmation that it is not a FATCA Exempt Party under clause 12.8.1(a) or 12.8.3 or it is treated as not being a FATCA Exempt Party under clause 12.8.5(a), the Borrower may (but shall not be required to), in addition to making any FATCA Deductions already required and any associated gross-up and indemnity payments under this clause 12, give notice (a Borrower’s FATCA Notice) to the Agent in writing that the remainder of this clause 12.11 shall apply (and the Agent shall pass on any Borrower’s FATCA Notice to the Lenders as soon as practicable following receipt). 12.11.2 Following the issue by the Borrower of a Borrower’s FATCA Notice under clause 12.11.1, a Lender which has given a confirmation that it is not a FATCA Exempt Party under clause 12.8.1(a) or 12.8.3 or which is treated as not being a FATCA Exempt Party under clause 12.8.5(a) may, if it is a FATCA Exempt Party or becomes a FATCA Exempt Party at least six weeks before the date of any proposed transfer pursuant to clause 12.11.4 or, as the case may be, at least six weeks before any proposed prepayment pursuant to clause 12.11.5, notify the Agent of that fact in writing prior to the proposed date of prepayment or, as the case may be, transfer (and the Agent shall pass on any such notice to the Borrower as soon as practicable following receipt), in which case the provisions of clause 12.11.4 or, as the case may be, clause 12.11.5 shall not apply. 12.11.3 The Borrower may, within two months of the date of a Borrower’s FATCA Notice, or such longer period as the Agent may agree, notify the Agent in writing that it either: (a) intends to prepay in full the participation of each Lender that is a FATCA Non Exempt Lender, specifying the amount to be prepaid and the date on which the prepayment is to be made (which date shall be the last day of the current Interest Period); or (b) if no Default has occurred, nominates one or more New Lenders who would meet the requirements of clause 32.1 (Assignments and transfers by the Lenders) and who upon becoming a Lender would be a FATCA Exempt Party, and shall accompany the notification with a draft Transfer Certificate containing as much information as it can reasonably obtain in relation to the proposed transfer. 12.11.4 If the Borrower gives a notice under clause 12.11.3(b), the Borrower shall cause such New Lender(s) to assume all of the relevant FATCA Non-Exempt Lender’s participation in the Loans and the relevant FATCA Non-Exempt Lender shall transfer its participation in the Loans to such New Lender(s), subject to and in accordance with the provisions of clause 32 (Changes to the Lenders). 12.11.5 If the Borrower gives a notice under clause 12.11.3 (a) the Borrower shall prepay that Lender’s participation in the Loans on the date specified in the notice given under clause 12.11.3(a). 12.11.6 This clause 12.11 shall be without prejudice to the obligations of the Borrower under clauses 12.9 and 12.10.

FATCA Mitigation. 12.11.1 If a Lender gives a confirmation that it is not a FATCA Exempt Party under clause 12.8.1(a) or 12.8.3 or it is treated as not being a FATCA Exempt Party under clause 12.8.5(a), the Borrower may (but shall not be required to), in addition to making any FATCA Deductions already required and any associated gross-up and indemnity payments under this clause 12, give notice (a Borrower’s FATCA Notice) to the Agent in writing that the remainder of this clause 12.11 shall apply (and the Agent shall pass on any Borrower’s FATCA Notice to the Lenders as soon as practicable following receipt). 12.11.2 Following the issue by the Borrower of a Borrower’s FATCA Notice under clause 12.11.1, a Lender which has given a confirmation that it is not a FATCA Exempt Party under clause 12.8.1(a) or 12.8.3 or which is treated as not being a FATCA Exempt Party under clause 12.8.5(a) may, if it is a FATCA Exempt Party or becomes a FATCA Exempt Party at least six weeks before the date of any proposed transfer pursuant to clause 12.11.4 or, as the case may be, at least six weeks before any proposed prepayment pursuant to clause 12.11.5, notify the Agent of that fact in writing prior to the proposed date of prepayment or, as the case may be, transfer (and the Agent shall pass on any such notice to the Borrower as soon as practicable following receipt), in which case the provisions of clause 12.11.4 or, as the case may be, clause 12.11.5 shall not apply. 12.11.3 The Borrower may, within two months of the date of a Borrower’s FATCA Notice, or such longer period as the Agent may agree, notify the Agent in writing that it either: (a) intends to prepay in full the participation of each Lender that is a FATCA Non Exempt Lender, specifying the amount to be prepaid and the date on which the prepayment is to be made (which date shall be the last day of the current Interest Period); or (b) if no Default has occurred, nominates one or more New Lenders who would meet the requirements of clause 32.1 (Assignments and transfers by the Lenders) and who upon becoming a Lender would be a FATCA Exempt Party, and shall accompany the notification with a draft Transfer Certificate containing as much information as it can reasonably obtain in relation to the proposed transfer. 12.11.4 If the Borrower gives a notice under clause 12.11.3(b), the Borrower shall cause such New Lender(s) to assume all of the relevant FATCA Non-Exempt Lender’s participation in the Loans Loan and the relevant FATCA Non-Exempt Lender shall transfer its participation in the Loans Loan to such New Lender(s), subject to and in accordance with the provisions of clause 32 (Changes to the Lenders). 12.11.5 If the Borrower gives a notice under clause 12.11.3 (a) the Borrower shall prepay that Lender’s participation in the Loans Loan on the date specified in the notice given under clause 12.11.3(a). 12.11.6 This clause 12.11 shall be without prejudice to the obligations of the Borrower under clauses 12.9 and 12.10.